Lee Vanit v The Queen D11/1996 [1997] HCATrans 71 (14 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D11 of 1996

B e t w e e n -

SOMPHON LEE VANIT

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Darwin No D12 of 1996

B e t w e e n -

PONCHAI TANSAKUN

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Darwin No D13 of 1996

B e t w e e n -

SANAN WANGSAIMAS

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

DAWSON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 1997, AT 10.21 AM

Copyright in the High Court of Australia

__________________________

MR D. GRACE, QC: If the Court pleases, I appear on behalf of the applicants, Lee Vanit and Tansakun, (instructed by Waters James McCormack) and for the applicant Wangsaimas. (instructed by NT Legal Aid Commission)

MR M. ROZENES, QC: May it please the Court, I appear for the respondents in all matters. (instructed by the Australian Government Solicitor)

DAWSON J: We thought we might hear from you first, Mr Rozenes, in this matter.

KIRBY J: You almost conceded in your submissions, Mr Rozenes.

MR ROZENES: Yes, I had a feeling this would happen, your Honours. We would have to concede that prima facie there is an argument for the granting of special leave in this matter specifically for the reason that we now have a Full Court in New South Wales saying one thing, a court in the Northern Territory saying another.

DAWSON J: What is the right answer?

MR ROZENES: We would submit, and that is why our outline of argument is as fulsome as it is, that the right answer is the Northern Territory answer and therefore, unless this Court was prepared to find on a special leave basis that leave ought not be granted because the appeal does not enjoy sufficient prospects of success and thereby stating, in effect, that the New South Wales court is wrong, if the Court is not prepared to do that, then we would have to say that the appropriate result will be to grant special leave because otherwise anyone sentenced to a term of life imprisonment in New South Wales will have to receive a substantially lesser sentence than perhaps anyone sentenced to that term of imprisonment anywhere else.

KIRBY J: It is not a big point. It is a very small point of construction. There are conflicting opinions. You say it does not happen often but where it happens it is terribly important to the people involved.

MR ROZENES: Yes.

KIRBY J: It is federal legislation. There are different voices. It would not take this Court long to resolve it.

MR ROZENES: No.

KIRBY J: You say it would be very much helped by the opinion below. I thought you would be grateful to us for elucidating this matter so that your offices will not be inconvenienced in different States with different arguments.

MR ROZENES: They are not my offices any more, I have concluded as the Director of Public Prosecutions. It is someone else's office now. But we would certainly welcome - - --

DAWSON J: It would be very hard to just give a decision on the run in the face of a decision of the New South Wales court.

MR ROZENES: The New South Wales court, yes. Could I ask the Court to expedite the hearing of the appeal because this is a matter that would cause - it is a short point and it is a matter that will cause great concern if it is not resolved relatively quickly.

KIRBY J: Yes, but Mr Vanit and his confreres will be in gaol for an awful long while. I do not think that they are going to be, as it were, holding their breath until we determine whether their sentences are capable of being reduced.

MR ROZENES: They will not, your Honour, but the next person sentenced, particularly in New South Wales - - -

KIRBY J: Are you telling us now there are lots of these cases?

MR ROZENES: No, but there is enough of them. New South Wales, I think, probably has the greater number of them and Victoria has had some where, you can see from our outline, no account was taken of the section 16G point at all. They may have an interest.

GUMMOW J: All that depends on how long it would take to argue.

MR ROZENES: I would be surprised if an argument in this matter took longer than half a day.

DAWSON J: I would not think it would take half an hour.

MR ROZENES: We thought our outline of argument was fairly persuasive, your Honour. We would not say much more on an appeal.

GUMMOW J: That was what I was really asking. Is there much more to be said on the appeal than is now in the outlines?

MR ROZENES: I should not think so.

KIRBY J: Why do you not agree that we should see if we can agree to decide this ourselves, treating the special leave application as the - not today, of course, but treating the special leave - we have not heard Mr Grace and that is the problem.

MR ROZENES: I am the respondent but if Mr Grace is happy with that, I am sure the respondent would be happy with that.

DAWSON J: I think you would really need at least five Judges in the face of the New South Wales decision.

MR ROZENES: I have nothing further to say.

DAWSON J: Yes, thank you, Mr Rozenes. The Court need not trouble you, Mr Grace. There will be a grant of special leave in this case.

AT 10.26 AM THE MATTER WAS CONCLUDED